LA v. L

HCMP 1548/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO1548 OF 2017

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J U D G M E N T

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BACKGROUND

1.  The plaintiff father seeks return of the child of the family to UK under the Child Abduction and Custody Ordinance, Cap 512 and the Convention on the Civil Aspects of International Child Abduction (“the Convention”).  The defendant mother objects to return under Article 13 of the Convention. 

2.  The mother is a Hong Kong native.  She married the father, an English national, in Hong Kong in 2007.  The child was born in Hong Kong in 2009 and is now aged 7 and 9 months. 

3.  In 2014, the family moved to England after the father lost his job in Hong Kong.  The child has been habitually resident there until his removal to Hong Kong in June 2017 as described below.

4.  It is the mother’s case that she and the child have suffered from domestic violence and psychological harm due to the controlling and abusive conduct of the father.  She and the father agreed to separate in mid-June 2017. 

5.  Allegedly on 14 June 2017, the father kicked the child, causing a bruise in the right forearm and the eye of the child.

6.  The mother and the child moved to refuge between 16 and 23 June.  The case worker at Bromley Children’s Services (“BCS”) interviewed the mother, the father and the child and other relevant people.  Due to the allegation of physical chastisement, an “S47 enquiry” was initiated and deemed single agency by the police.  A DASH Risk Assessment rated the mother’s case as high risk. 

7.  On 23 June 2017, the father obtained orders from the Family Court at Bromley prohibiting the mother from removing the child from the care and control of the father, removing the child from the jurisdiction of England and Wales and from applying for a passport in the child’s name. 

8.  The mother left England for Hong Kong with the child in the evening of 23 June 2017 despite her being orally informed of the Bromley Court order (a fact she never denied), with an emergency passport issued by the Chinese Embassy to the child. Further investigation on the mother and child by the BCS was halted. 

9.  This court became seized of the father’s application for return of the child under the Convention on 4 July 2017. 

10.  The mother objects to return.  She claims that the child has for a long time wanted to return to Hong Kong and has formed a strong view that he does not wish to return to England or to the father’s custody.  She is concerned that the father cannot care of the child, and has never been able to do so on his own.  Recently, their relationship has become increasingly violent and she does not believe “safe harbour” undertakings will be able to protect the child (§4, mother’s affidavit).  The mother relies on Article 13 of the Convention for the following reasons:

(a) That the child has suffered physical and emotional abuse at the hands of the father, and that return to England would cause grave psychological or physical harm (Article 13(1)(b)); and

(b) That the child objects to return to England and, given his age and maturity, and the circumstances of his objection, his views should be considered (Article 13(2)).

11.  The father denies the allegations of abuse.  He says that the child is too young for his views to be taken into account.  He relies upon the safe harbour arrangements in England and the undertakings between the parties.

ISSUES

12.  The issues are as follows:

(1) Has the mother proved on the balance of probabilities that the child has been subjected to physical or psychological abuse?

(2) If the child is returned to England, would it expose him to a grave risk of harm or place him in an intolerable situation?

(3) Does the child object to returning to England?

(4) Is the child of sufficient age and maturity that his views should be taken into account?

(5) Should the Court exercise its discretion in favour of the child’s views?

(6) If the child returns or remains, what consequential orders should the Court make?

LEGAL PRINCIPLES

13.  Article 13 of the Convention reads:[1]

“(1) Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—

(a) …; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

(2) The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

(3) In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

14.  The mother relies on the defences in limb (1)(b) and (2).

Grave risk or intolerable situation – Article 13(1)(b)

15.  A very high threshold has been set for this defence.  There must be clear and compelling evidence showing a severity much more than was inherent in the inevitable disruption or anxiety which followed an unwelcome return to the jurisdiction of the court of habitual residence of the child: Re P [2004] 1 HKLRD 815, §17,Deputy Judge Lam (as he then was).

16.  The principles relating to grave risk have been set out in M v E (unreported) CACV 75/2015 (5 June 2015) at §8.1:

(a) The burden of proof lies on the party who opposes the return of the child.  It is rarely appropriate to hear evidence on this issue.

(b) The risk to the child must be grave.  This means the risk has reached such a serious level as to be considered grave.  The word ‘grave’ is related to the risk rather than the harm itself, although ‘risk’ and ‘harm’ are often linked.

(c) The grave risk associated with return is either of the child’s physical or psychological harm, which is unqualified, or it is that the child would otherwise be put in an intolerable situation.  The latter means return to a situation that the child should not reasonably be expected to tolerate or put up with, such as physical or psychological abuse or neglect of the child.

(d) This exception is concerned with the future when the child is returned to his home country.  At the same time one would expect protective measures for the child to be put in place by the Court of the child’s own country.

17.  Regardless of whether a child is returned or not, the risk of abuse is also relevant to the question of appropriate undertakings to protect him upon return: M v E at §8.9.

18.  Unless the Court can reject the allegations of abuse contained in the affidavit evidence, because they are so inherently incredible or unreliable, it should consider whether there is independent extraneous evidence in support of the allegations.  While admission of oral evidence in Convention cases should be allowed sparingly, in such cases evidence in the form of an expert report from an independent psychologist or psychiatrist, who specializes in abuse of children cases should be introduced to assist the Court in its determination: D v G [2002] 1 HKLRD 52 at §33, per Cheung JA (as he then was).

19.  Although D v G was concerned with sexual abuse, these principles have been applied in respect of allegations of psychological and physical abuse.  See YYW v HWW (unreported) HCMP 409/2017 (19 May 2017, B Chu J) at §§4, 26, 31, 132, 159 (allegations of physical violence to children and mother).

Objection to return

20.  To rely on Article 13(2) of the Convention, it requires a higher threshold than a stated preference: RRG v LGR (Hague Convention) [2006] 3 HKFLR 490, §44. 

21.  The normal approach to the child’s objections is to break the matter down into 2 stages: the “gateway stage” and the discretion stage.

22.  In the gateway stage, it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views.  If the gateway elements are not established, the court is bound to return the child in accordance with Article 12.  If the gateway elements are established, the court may return him or her but is not obliged so to do.  LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 (CA) at §9.4.

23.  It is the substance of the child’s views that should be considered.

“A forthcoming child may use the expression ‘I object to return to New Jersey’, while a child who is less forthcoming, particularly one who has concern about the feelings of both of his parents, may simply say ‘I prefer to stay in Hong Kong’. What is important is the substance of the views of the child and not simply the labels to be attached to his views.” LCYP v JEK at §9.10, Cheung JA.

24.  There is no absolute threshold age below which a child could not be sufficiently mature for the purposes of the child’s objections, nor are there presumptions.  Whether a child has the age and degree of maturity can be determined by looking at the attributes of the particular child, the circumstances in which he finds himself, and the nature of the objections.See Re W (Abduction: Acquiescence: Children’s Objections) [2010] 2 FLR 1150 at §37 (children aged 8 and 6); Re B (Abduction: Children’s Objections) [1998] 1 FLR 667 (children aged 12 and 7).  In those 2 cases, objections of the children were accepted by the courts.

Issue (1) – Has the child been subjected to physical or psychological abuse?

25.  There is evidence from several sources suggesting that the child has been exposed to violence and abusive behaviour by the father:

(1) The mother;

(2) The independent medical report of Dr Jenny Flavill prepared after she had interviewed the child alone; 

(3) The child through Ms Lane of BCS; and

(4) The child through the Hong Kong Social Work Officer, Ms Chow.

26.  The mother’s evidence details a long history of the father’s possessive, manipulative and obsessive tendencies towards her.  Those that affected the child included being physically and verbally abusive and shouting to her in the child’s presence.  The allegations directly concerning the child include the following:

(a) Locking the child in the toilet when he was 2 years old; locking him in his bedroom at the ages of 6 and 7;

(b) Throwing the child on the floor about 5 weeks before the child was interviewed by Dr Flavill;

(c) Hurting the child physically by kicking him on 14 June 2017;

(d) Shouting directed at the child; and

(e) Forcefully restraining the child and holding his breath.

27.  The mother told Dr Flavill that once when reading a bedtime story to the child, the child said, “mummy I wish I had a new daddy.  I will always be in trouble with this one.  … Daddy doesn’t love us anyway.  If daddy dies I will cry a little but I will be a bit happy.”  When Dr Flavill asked the child if there was anything he was worried about, he said he was worried that daddy would find him and mummy and take them back to his house.  He might hurt the child and shout at mummy. 

28.  As the mother perceived, the situation has become worse since January 2017.  The child was growing up physically and in confidence.  He would resist the father’s controlling and aggressive behaviour.

29.  The father denies abusing the child and the mother.  He is unable to explain the injury to the child’s right forearm but denied that it was caused by his kicking the child.  He suggests that the child’s bruises to his eye was caused by an unrelated incident at school.  He accepts that he did tap the child's arm with his foot to try to get him to go to bed.  It was because the mother had thrown a plastic toy on the father, which caused him back injury and the father could not lift the child up from the floor.

30.  The father accepts that there were escalating and constant disagreements, which he attributes to pressure of work, the mother’s behaviour and lack of support. 

31.  The father points out that:

(a) The child’s school report do not record any concerns;

(b) Dr C de Villiers of the NHS Bromley Cator Medical Centre, who has personally treated the child since the child had gone to England certifies that there are no concerns regarding his welfare or safety in the care of his father.

(c) Ms Lane’s Social Work Assessment Report expresses concerns over the mother’s behavior as she was obstructive in preventing the child from being able to speak to Ms Lane alone.  The mother did not appear to be in a sound state of mind and due to this the police was notified of child safety concerns.  The investigation could not go on because the mother and child had left England.

32.  The mother disputes Ms Lane’s Report as containing hearsay, secret communication with the father without the mother’s input, lots of errors and was biased. 

33.  Ms Lane’s Report was prepared within a short time. Her statement that the mother was of unsound mind was not based on medical evidence but only a reflection of what she perceived to be the then unstable state of mind of the mother. However, as in the references below, Ms Lane did not reject the mother’s case on abuse.  She very fairly presented the evidence as she has received, including her own observation of the child.  It may be true that she cancelled a meeting with the mother.  However, the truth is that she was prevented from fixing another one because the mother has already left England.  Save as otherwise indicated, I accept Ms Lane’s Report as evidence.

34.  On their own, I agree with Mr Marwah that allegations from the mother’s side cannot be dismissed outright as being inherently incredible or unreliable, notwithstanding the lack of expert reports.

(a) The mother’s search for local assistance and refuge in England suggests that it cannot be a recent concoction.

(b) The child has been consistent in his explanation of the source of his injury to the mother, Dr Flavill, the Maternal Uncle, and Ms Chow;

(c) The child has been consistent and resolute in his complaints of fear of suffering harm at the hands of the father as could be seen from his complaints to Ms Chow and his mother.

(d) There is evidence of a visible bruise on the child’s forearm as observed by Ms Lane, Dr Flavill and Ms Chow. 

35.  As Dr Flavill says, “It is well known that exposure to abuse and domestic violence can have long term negative effects on children, including mental health difficulties.  It is important that [the child] is able to live free from abuse and domestic violence.” 

36.  There is also evidence of the couple seeking marital counselling in Hong Kong between 2012 and 2013 and in England in 2015.  There is a medical certificate showing that the father suffered from oppressive compulsive disorder (“OCD”) although there is another one showing that he had recovered from OCD in November 2013.

37.  There is evidence of one report to the Hong Kong police about a domestic dispute before the family moved to England but it did not involve the child. 

38.  I note that evidence on both sides and reports were prepared in a hurry and could not be said to be complete.  The DASH Risk Assessment was, without disrespect, one-sided.  Allegations of abuse have thus to be considered against the objective circumstances. 

39.  In December 2014, shortly after moving to England, the mother sought help from the Chinese Information and Advice Centre.  She was focused on the father’s OCD.  She asked if there were any urgent shelters just in case the father’s panic attack got over him and she had a 5-year old boy.  There was no mention of violence or abuse on the child or herself.  As observed by Ms Lane, despite extensive enduring domestic violence, the mother had not reported to the police, Social Care or any domestic violence practitioners in UK for help and support.

40.  More importantly, there is no dispute that notwithstanding the alleged abuses, the child had been left to the sole care of the father for a total of 1.5 years.  The father was able to take care of him with the assistance of a nanny/the maternal grandmother in the following periods when the mother was out of England:

Period	Age of child	Purpose
December 2014–April 2015 (5 months)	5 years	Mother says she was kicked out of home.  She travelled to Hong Kong alone for surgery in the eye; Father had to get assistance to look after the child. Father and child in Hong Kong between 22 and 28 February 2015 for a week.
May 2015–23 July 2015  (2 months)	5.5 years	Mother stayed in Hong Kong and Singapore after family holiday in Singapore. Maternal grandmother escorted child back to England and stayed behind to take care of him.
28 November 2015–25 June 2016 (7 months)	6 years	Mother had operation on ovarian cyst in Hong Kong. Father and child visited her for 2 weeks over Christmas and between 24 March and 2 April 2016.
September 2016–December 2016 (4 months)	6 years 9 months	Mother in Hong Kong alone for eye surgery. Maternal grandmother in England between October and December to take care of child.

41.  Such absence was not overlooked by Ms Lane.  The mother seeks to tone it down by alleging that Ms Lane has not included the mother’s assertion that it was since about January 2017 that the father had become violent to the child and that Ms Lane was biased.

42.  Even if the mother was correct in her criticism of Ms Lane, there is no evidence that the maternal grandmother had ever detected any improper conduct of the father in the 5 months when she was in England.  All that the maternal grandmother told Ms Chow was that the father and son had poor interaction; the father was demanding and mean which made the son very unhappy; the son was not given adequate toys and clothes that suited his size.  The mother supplements the evidence by saying that the maternal grandmother has described the father as being indifferent and shouted loudly to the son which scared him.  Such evidence, in my view, hardly demonstrates abuse, physical or psychological harm on the child. 

43.  Further, according to Ms Chow, the routine for the child was for the mother to collect the child on every Wednesday after school for Kumon class. The father would drive the child home for the rest of the week[2]. Weekends were spent on shopping and leisure together.  There was nothing to suggest that the child has at any time opposed to being alone with the father at those times.

44.  Moreover, the mother appears to accept that she has had Friday nights out on her own.  I query why she would be content to leave the child alone to such an abusive father who would harm him.

45.  So at least up to the end of 2016, even if any allegations of the child abuse were true, they were not so serious or intolerable that the mother had seen fit to take any action to protect the child from his father.

46.  Despite the mother’s allegations about growing conflict in 2017, the father has maintained at least a fair relationship with the child as is consistently reflected in the observations of (i) Ms Lane, (ii) a family friend Ms Mok; (iii) Ms Chow; and (iv) the after-school club.

47.  Firstly, Ms Lane observed that the child did not appear afraid of his father and was happy to be left alone with him to play and interact which, to her, somewhat undermined what the mother has reported in regards to the father and the extent of the concerns that the mother was self-reporting.  She considered that the child’s wishes and feelings need to be explored further. She had not identified any behavioural traits which would suggest that the child had been witness to ongoing domestic violence.  These remarks were made after the child had moved into refuge. 

48.  Again the mother seeks to tone down such observations by saying that the child was with the father for only 20 minutes.  The child was initially scared and turned to the mother for assistance.  It was only after her assurance that the father would not harm him that the child engaged with the father.  In my view, that goes to show that the child was still open to persuasion.

49.  In fact, Ms Lane did not miss the child’s initial reaction:

“Contact was observed between [the child] and his Father in the family home whilst Ms Lau collected further belongings. Although [the child] was somewhat hesitant to engage with his Father initially, this is to be expected given the events of the previous week and the fact that [the child] has not been residing in the home for a few days. After a minute or so, [the child] happily played and interacted with his Father and [the Father’s] interaction with [the child] was gentle and nurturing.”

50.  Ms Lane has also stated in her email dated 22 June 2017 to the father’s solicitor (J Li) that

“there was some initial hesitation from [the child] to interact with his Father, this is to be expected given that [the child] has now been away from his Father for several days and has been speaking to professionals about his Father hurting him. After a couple of minutes, [the child] was playing and interacting with his Father happily and from my observations, I am of the view that this interaction was positive.”

51.  I do not see bias in Ms Lane’s view as she was basing it on her own observation of the scene before her and her own expertise.

52.  Secondly, a family friend, Ms Mok, was interviewed by Ms Chow. She was not a baby sitter of the child.  The child mixed well with her daughters.  She said that the father’s sister and mother sometimes helped to take care of the child.  As the mother was absent from home sometimes, Ms Mok introduced the child to the breakfast club in school to ease the child care. She observed that the parent child relationship was good.  She never heard of any physical punishment to the child.  She described the child as a good boy without any special problems.

53.  Thirdly, Ms Chow observed the father and child relationship on 21 July 2017 after they had been separated for a month.  The father and son were in the playroom together whilst the maternal grandmother was outside. Initially the child was detached but gradually he played with the father and even gave suggestions to the father on the games. 

54.  Fourthly, the after-school club describes the father as a reliable person and has always put the child first, making sure his child care needs were always met.

55.  The objective circumstances show that at least before the child left England, his relationship with the father was not so bad as the mother wants to portray now.

56.  The situation greatly deteriorated in Hong Kong after separation of the father and son pending this substantive hearing.  Skype access was not smooth. The mother says she has been encouraging the son to speak to the father.  The father says that the mother stood behind giving the child pressure or making loud noise to disrupt their contact.  Day access was frustrating for the father.  The maternal grandmother and aunt would not allow the child to have private time with the father notwithstanding the father and child had had excellent moments (according to the father) of swimming, visiting museums and eating in restaurants.  The child’s narration to Ms Chow shows that he was so stressed that he had forgotten where he had gone during access.  He did not want to sleep with the father.  He cried a bit as he worried he would be scolded by the father. 

57.  Considering all circumstances, whilst the child may have been subjected to some physical or psychological harm from the father, I am not satisfied on balance that it was as serious as depicted by the mother.  Nor am I satisfied that the current psychological state of the child was what existed when he was first brought into refuge.

Issue (2) – If the child is returned to England, would it expose him to a grave risk of harm or place him in an intolerable situation?

58.  No expert assessment has yet been made into the likely effect of return to England.  Mr Marwah submits that past abuse created a profound effect on the child’s sense of security for both himself and his mother, as demonstrated by his views expressed to Ms Chow (§§66-68 of her Report).  It clearly rises to the level of ‘intolerable’ and ‘harm’.  The threat of return creates fear in the child, whereas the thought of remaining in Hong Kong fills him with relief.  Mr Marwah submits that there is a grave risk that a return to England would affect the child psychologically – regardless of safeguards.

59.  Given my views and findings in paragraphs 38-57 above, I am not satisfied that there is grave risk of harm to the child or that he would be placed in an intolerable situation.

60.  I have not overlooked what appears to be deterioration in the father-and-son relationship since the child left England.  There is no evidence that the mother or her extended family members exerted negative influence on the child.  However, for a month, the child has been subjected to interviews with professionals or social workers about his father hurting him.  His father’s access to him was in the presence of the extended family members, sometimes with video recording of him. 

61.  The reason for such deterioration is yet to be investigated but I am not satisfied on balance of probabilities that the cause was dominantly due to the father’s conduct.

62.  Moreover, there should be a distinction between returning the child to England and returning him to the father’s home.  The court should consider safeguards.  If Mr Marwah is correct that in view of grave risk the child should not be returned to England, regardless of safeguards, there will be no need for the court’s exercise of discretion under Article 13(2).

Issue (3) – Does the child object to returning to England?

63.  Whilst in England, the child had regularly told the mother and the father that he wanted to go back and live in Hong Kong.  He said that he wanted to live with his “big family” in Hong Kong.  The child had asked the mother, “But daddy won’t let us, will he?” This was, in my view, more of an expression of preference, when one remembers that he had spent his first 5 years in Hong Kong.

64.  According to the mother, the child had said on a number of occasions, without prompting, that he does not wish to return to England and wishes to live in Hong Kong.  He also said this to the maternal grandmother and the aunt.  When the father first exercised access in Hong Kong, the father asked the child if he wanted to go back to study in the UK to which the child said Hong Kong.  On subsequent occasions, the father kept asking child whether he wished to return to England but the child remained silent on each occasion.  He subsequently told the mother that he was too scared to tell the father that he did not want to go back.  He also refused to go to the home of the father’s friend during staying access in Hong Kong.

65.  According to Ms Chow’s Report:

“67. … [the child] said that he wanted to stay in Hong Kong and preferred the Mother to the Father. (emphasis added)

68. [the child] said that if he was upset, he would approach the Mother, Maternal Uncle, Grandmother and Aunt for help. He shook his head strongly and spontaneously and said ‘no’ when mentioning the Father. He said he would not approach the Father because he would hurt him. He said that the saddest thing was he saw the Father strangulated the Mother. He could not recall the details but he saw it when he was a baby. He said that he felt the happiest thing to be back to Hong Kong because the Father would not be there. If he had a wish, he hoped he was a grown up now and he could help the Mother.” (emphasis added)

66.  Considering paragraph 68 of Ms Chow’s Report, I find that the child objects to return to England.

Issue (4) – Is the child of sufficient age and maturity that his views should be taken into account?

67.  The child is aged 7 years and 9 months.  There is reference on the mother’s side to the school’s comments on the child’s performance and Dr Flavill’s comments on the child’s response when interviewed.  I do not consider those references to be helpful in deciding if he has the maturity to understand the situation he is facing or to decide the important question of where to live and with whom.

68.  Mr Marwah submits that:

(a) The child objects to return because of his fear that he and his mother are at risk of abuse from his father.  These concerns are based on his recent experience with his father.

(b) The child wants to remain in Hong Kong because he feels more secure here, away from his father and closer to his extended family.  These are logical and relevant concerns that have a direct effect upon his welfare.  They are supported by the fact that the mother is without support in England, and they have nowhere to live except with the father.

(c) The child is very happy living in Stanley with his mother, and closer to her family.

69.  Mr Marwah submits that the child clearly understands the relevant circumstances and his reasons are well articulated.  His concerns are in line with bona fide welfare concerns – they are not spurious.  His feelings are strong, and not momentary or fleeting.  The father has not raised any substantial basis for rejecting the child’s views, aside from the general comment that he is young and an unsupported allegation of coercion and alienation by the mother.

70.  I have alluded to the situation before the child was taken out of England.  In addition, there was no evidence of even one occasion in England where the child refused to return home to his father or go out with the father. The fear of the father hurting him out of home was not even the subject of the mother’s complaint.  And yet the child has expressed fear of his father in Hong Kong without bases.  He was never hurt or scolded for not doing skype access, not going out with the father or sleeping with him during access.

71.  Those fears were wholly inconsistent with the child staying alone with the father in Ms Lane’s office and initially in Hong Kong in Ms Chow’s office.  His almost complete rejection of the father appeared to have started only after he lives in Hong Kong with the mother’s family.  The fear of his father was displayed when the mother or her family members were around.

72.  The child is not of sufficient maturity for the court to take into account his views, which were lopsided.

Issue (5) – Should the court exercise its discretion in favour of the child’s views

73.  If I am wrong, I have considered whether to exercise my discretion to order the child to return to England or to stay in Hong Kong.  The spirit of the Convention is to ensure the prompt return of an abducted child to his place of habitual residence and that must be upheld save for good reasons. 

74.  Mr Marwah submits that a return to England would not be in the best interests of the child.  The child’s physical, educational, housing, emotional and social needs are well catered for in Hong Kong.  The child is strongly attached to his mother’s family, especially his maternal grandmother.   On the other hand, the child has suffered abuse in England and is likely to suffer further if returned.  It is practically more difficult for the child and his mother to relocate.  The mother has little support in England and is facing contempt charges if she returns that may lead to separation of the child from his mother.  The child enjoys a good relationship with his mother and a poor relationship with his father.

75.  In the present context, I have considered whether there are safe harbour measures in England and the mutual undertakings.

5.1 – Safe harbour measures in England

76.  The English Courts have shown expediency in taking up the case, but for the mother’s act in contempt of the injunction. The matter was moved up to the High Court of England.  An inter parte hearing has been fixed for 22 August, within 2 months of the Bromley Court Order.

77.  Further, the English Children Act 1989 sets out a scheme for handling child abuse cases. The scheme is not much different in substance to the spirit of Hong Kong legislation in treating a child’s welfare as of paramount importance.  Multi-disciplines (like police, social workers, doctors, psychologists and other professionals) will be involved in investigating the allegations and making applications for protection orders to the court if necessary.  Supervision order and accommodation may be provided to a child.

78.  After the mother first made a complaint to Women’s Aid in June 2017, what followed was in accordance with what was laid down in the Children Act 1989.  She and the child were provided with temporary refuge despite the fact that the mother was not a UK resident.  The police was alerted.  Dr Flavill was consulted, who recommended follow up on psychological investigation. Investigations were halted only because the mother had fled the country.

79.  The Bromley Healthcare Report dated 26 June 2017 relied on by the mother recommends as follows:

“1. Children’s Social Care to ensure that the family have access to the support available from Women’s Aid and the One Stop Shop.

2. [The child] to be referred to Bromley Community Wellbeing to help him to understand and come to terms with the effects of the alleged exposure to domestic abuse and physical abuse. Dr. Jenny Flavill to make referral.

3. [Ms Lane] is reported to have made a Police referral. Kirsten Connor has agreed to chase it up to ensure that the family are kept as safe as possible.

4. Children’s Social Care to complete a Section 47 investigation as planned.”

80.  Therefore, even on the mother’s own case, there are safe harbour measures in England available and they are in accordance with the legislation.

5.2 – Mutual undertakings

81.  Regardless of whether the court accepts the mother’s case on abuse, returning the child to England is not the same as returning him to the father’s home.  In my view, the home may be a pressure cooker for the mother and father, and will be more so after this piece of litigation.

82.  The interim position has now been dealt with by way of mutual undertakings. The major undertakings are that:

(a) The father has his office at home but is willing to provide separate rented accommodation at an AirBnB located near the child’s school from the arrival of the mother and child in England, failing which he will provide a sum of £1,500 per month for the mother’s accommodation to be located within 3 miles radius of the child’s school in London, unless agreed between parties.

(b) Without prejudice to the appropriateness of the quantum, the father will provide maintenance for the child at £1,200 per month from 15 August 2017 until one month after the first inter partes hearing of the English Court after the order for return of the child. 

(c) The provision of accommodation and monthly maintenance shall last until one month after the first inter partes hearing in the English Court after the order for return is made.  The intention is: to ensure that mother and child will be provided for before the English Court makes orders. 

(d) The father and mother will not harass each other and/or the child; and will not seek to visit each other at their respective places of residence without the other’s consent.  They will actively encourage the child to spend time with the other parent.

(e) The mother’s concern over the contempt proceedings is addressed by the father’s undertaking not to pursue criminal complaints or commence committal proceedings in respect of conduct up to the day of this hearing. 

83.  These mutual undertakings provide yet another form of safe harbour arrangements that will ensure the smooth return of the child to England.  I would give the sternest warning to the mother that court orders are to be obeyed and that she should not take the kindness of the father not to pursue contempt proceedings lightly.

Issue (6) – If the child returns or remains, what consequential orders should the court make?

84.  The summer vacation will soon be over.  The child should be returned to England as soon as possible, arriving by 29 August 2017, latest.  Given the unhappy encounters in Hong Kong, the father should not travel in the same plane with the child.  The air fares shall be borne by the father.

85.  Parties have been trying to work out access.  Generous access including staying access should be given to the father.  In default of agreement, the previous arrangement shall continue so that the mother will fetch the child direct from school on the day he has Kumon class.  The father will fetch the child direct from school on the rest of the week days and send him home to his mother. 

86.  Staying access shall be attempted on alternate weekends.  Mr Egerton suggests:

Week (a):  from Thursday after school until Monday morning;

Week (b):  from Friday after school until Monday morning.

87.  With respect, I do not find this to be desirable.  The child will be effectively “split” between 2 homes and there may be adjustment problems.  I would direct, on an interim basis before the English Court hears the matter, that staying access be from Friday after school until Monday morning on alternate weekends.

CONCLUSION

88.  In summary, this is a blatant case of child abduction which the Convention was designed to remedy.  The child’s habitual residence is England. The removal was wrongful and in breach of an English Court order.  The mother’s complaint of physical or psychological harm does not reach the threshold of showing grave risk of physical or psychological harm on the child if the child is returned.  Even if grave risk is established, there are safe harbour measures in England and by virtue of the parties’ mutual undertakings. The Court would not rely on the child’s objections but should exercise its discretion to order his return.

89.  Each party has attempted to put his/her case before the court.  I have no doubt each considers his/her move to be in the best interest of the child. I am of the view that there should be no order as to costs.  There shall be legal aid taxation of the mother’s own costs.

90.  I accept the mutual undertakings as amended by me at the hearing and order as follows:

(1) The child shall be returned to England, to arrive no later than 29 August 2017 (England time). 

(2) The father shall not travel on the same plane with the child for this return journey.

(3) The father shall pay for the one-way air tickets of the mother and the child for their return to England.

(4) The passport and identity card of the child shall be returned to the mother for the sole purpose of taking him back to England.

(5) The prohibition against the child’s leaving Hong Kong as stated in the order dated 4 July 2017 be uplifted for the purpose of his return to England.

(6) The undertakings set out in paragraphs 82(a) to (c) are made express orders of this court.

(7) Liberty to apply.

(8) On a nisi basis, there shall be no order as to costs.

(9) The mother’s own costs shall be taxed in accordance with Legal Aid Regulations.

(10) By consent, leave is given to the parties to disclose copies of all the documents (including the Social Investigation Report prepared by Ms Chow) to their respective legal representatives in England and Wales and to refer and rely on such documents in proceedings in England and Wales concerning the child. 

91.  I thank counsel for their assistance.